Highly Detailed Family Law Summary Notes

Resource Description

1. The Nature of Family Law

Concept of family law

• • Covered in the Family Law Act 1975 (Cth) ? legal duties and responsibilities 
  • Different forms of family arrangements that shape society’s concept of what family is
  • Family Law comprises of laws that deal with relationships between family members and rights/responsibilities of people in families 

• Marriage Act 1961 (Cth) ? establishes legal requirements for marriage 

• Society protects married couples responsible for children by distributing property according to marital and parental relationships ? alternate family relations also governed by law 
• Difficult concept as it applies an adversarial system to an area where cooperation and reconciliation are needed

Definition of family 

• Difficult to define family ? many different kinds of relationships regarded as family
• FLA 1975 defines a family as “the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependant children”. 
• Undergone substantial change over 30 years ? traditional consists of wife, husband and children less common 
• Family Law governs relationships between people in different types of families
• C v D (1979): C was hermaphrodite never able to consummate marriage with D – decree of nullity granted 

Legal requirements of marriage 

Legal Characteristics (without this marriage is null and void)

Marriage must be: 

• Union of man and woman; same gender is not legally binding in AUS

Hyde v Hyde and Woodmansee (1866): union of man and woman, to the exclusion of others, voluntarily entered into for life

• Voluntarily entered; not legally binding if forced or tricked into

1. 1. Arranged marriages may also be classified as voluntary as consenting parties organise marriage to be arranged however adults and minor is not accepted

Mehta v Mehta (1945): Ceremony declared valid however was not aware of the marriage due to foreign language was granted decree of nullity 

• For Life; intention of marriage rather than actuality 

• To the exclusion of all others; two people only ? AUS is monogamous society ? adultery no longer grounds for divorce ? evidence of social values changing 

• Polygamy is not legal in Australia however other ‘wives’ considered de facto

• As seen with Marc Glasby article on SMH where Mr. Glasby’s second wife (also a twin) was only considered de facto 

• Specification of man and woman; indicates that parties to marriage must be of different sexes

Re Kevin 

 

SYLLABUS – ‘learn to’ ? distinguish between State and Federal jurisdiction in family law ? 

Federal

• Under Australian Constitution government has power to make laws related to marriage and divorce ? Federal power prevails over certain matters 
• E.g. 1988 and 1990; states and territories except WA agreed to hand jurisdiction about children of de facto couples to the Commonwealth
• Children jurisdiction lies under Family Law Act 1975 (Cth): 
  • Marriage
  • Divorce 
  • Matrimonial causes (parental rights, custody and guardianship of infants)
  • Property disputes for divorced couples and non-married couples 

States 

• Residual power to make laws about other family related matters. States have power over: 

• Wills, inheritance and succession

• Adoption

• Aspects of domestic violence 

• Surrogacy and birth technologies 

• Care and protection of children who are at risk of harm  

• Registration of births, deaths and marriages 

SYLLABUS – ‘learn to’ ? outline the requirements for a valid marriage 

Though the Marriage Act 1961 (Cth) specifies that marriage have four main elements (between a man and a woman, voluntarily entered, to the exclusion of all others, and for life), there are three major requirements for it to be legally recognised. The Marriage Amendment Act 2004 (Cth) established that same-sex marriages were not recognised and reaffirmed that a marriage is between man and woman, exclusion of all others, voluntarily entered (factors must NOT be doubted) 

1. Marriageable age and parental consent; males and females over eighteen years of age can marry without parental consent, however if they are over sixteen but under eighteen, they can marry with the consent of a judge or magistrate under certain circumstances. Exceptional conditions that can allow such young marriages include impending death, financial security, and maturity, though pregnancy is not deemed a valid reason under the eyes of the law

 

Ex parte Willis (1997): Magistrate of the Family Court ruled that couple could not marry due to not being ‘exceptional’ and unusual to justify acceptance of marriage due to being 17 and 9 months old however discovered she was pregnant 

 

1. Notice of marriage; a couple must complete a Notice of Intended Marriage form and give it to the celebrant who will conduct the ceremony 1-6 months prior to the ceremony for it to be valid. If one party has had a dissolved marriage, a death or divorce certificate must prove this ? must give at least 18 months notice of intention to marry celebrant through NOM ? approved celebrants: doctors, solicitors, police officers

 

1. Prohibited relationships; to marry, the couple must not be too closely related by blood (ancestors, descendants, siblings) or by marriage (step-siblings, step parents). However, uncles and nieces etc can marry

 

1. Valid marriage ceremony; 2 witnesses 18+ ? parties to marriage reasonably believe witnesses are above 18 ? official marriage celebrant to perform ceremony, parties must believe celebrant is authorised
2. Marriage certificate; issued by celebrant after ceremony is completed ? legal proof marriage was conducted according to law ? parties + witness must sign marriage certificate and keep copy for official purposes and send to Registrar who keeps it in the system for minimum of 6 years. This process makes the marriage licensed. 
3. Void marriages; invalid if: bigamy, consanguinity, duress or fraud Di mento v Visalli, not marriageable age, same sex, ceremony by unauthorised celebrant? court able to null marriage, in the eyes of law is deemed illegal